Signal-Copiahan. (Hazlehurst, Copiah County, Miss.) 1885-1888, 1887-04-07
Gcargc Deasley W.. the State.
Appeal from tho Circuit Court of
Copiah connty.
Ii. c. Conn for appellant; Attorney

Appeal from the Circuit Court OF
Copiah connty.
Ii. &. Conn for appellant; Attorney
General fJr the State.
A. tie October term appellant Ma
indicted. tiled and convicted.
H. delivering the npinion ~. the
Court, Nr. Justice Campbell tcld:
The fourth instruction ior the State
il erroneous. II told tie jury to con-
Wet of murder. even il satisfied that
the deceased had. an instant before.
s!iot aud missed Sllr accused. anu that
the accused fred the fatal shot ill.,
-,antly upon the deceased turning tn
rim after this aitemp. on his llie. IL
/. ,rua the word deliberately IA IN
the instructions, hut il mockcry OF one
shot nc hy AN asSailant 10 speak OF his
instantly acting deliberately IN shoot
ing ut his assailunt. Delibcration Is
no, in the nature Of things predicablc
of one ia that situation. IL fear be-
absent passion and q spirit Of resist.
ancc and resentment would bc Justly
aroused aud excited by such circnm-
stance, and instantly killing the ~.
,ailant, would bo manslaugh'rr Mt
most. The fact that ltlc person shot
aud instantly returning the IRE aud
killing hi. as,ailant, intended TO kill,
AMI MAS deliberate enough IL Ito 1t,
would not make him guilty of murder.
The instruction il not saved from fatal
error hy the word "delibcrItely."
State W. llill.i Dew. Il Bay, iyl which
contains u lucid .spositios 81 tine law
on This subject by judge Castor. I"
which We Subscribe. The same error
is contained in the 9Th Instruction for
the State. The twcnty.!irst instruct.
ion 'or the accused CORRECTLY Informed
the Jury that he should be- convicted
of lnai.,!au shirr and not murder, If the
evilcurc made il doubtful whether tho
killing WAS pursuant to a pr"mcdita-
ted design, or from sudden lcI, OF pas
sion, aroused by defendant being shot
ut by deceased. II thi. could be view
ed ~ "A modification Of the erroneous
instructions for the State il might he
held to cure il, but are antigonis'ic
and irrcconcilnblc, announcing con-
Trajectory rules far the guidance oi
the Jury. anil leaving the selection be-
tween them which Ia adopt. Bat for
this error We wo Id affirm the judg-
men,: in view Of it We carno,. The
accused testified that S;arns shot al
him with rifle and turned 10 ran, and
l,c instantly shot and killed S'Iras.
The court, hy the fourth instruction
for the State, told the Jury this WAS
murder. if the accused shot deliberate.
Is. We do not know any ease sane.
! tioning any Mcll proposition Us Supplied
to such circumstances as this case pre-
SCENTS. The court. in giving the twou-
/ ty-firSt instruction fof the defendant,
suggests iha, the fourth and ilth for
the state received the approval of the
learned circuit judge, either by mad
yrrtancc or by not attaching to them
the meaning which We understand the
language To impart, TO, IL il incon-
riyahc that both could lave been
approved; hrt. although the Judge
/ had correct views al the law, the harm
wa. done the defendant vi autlroriz-
ing his conviction oi mnidcr, At the
option OF the jury, il II state of facts
which the law does not adiudgr to N'
murder. The jury may have accept
I'll ~ true the defendants account OF
the killing, and accept tn" fourth in'
struc:jon TOR the state Of III" law ST the
case, found the accused gfnlty Of mnr-
dri; but ii the killing occurred ~ he
trstiird. i, was not murder, certainly.
Reversed and cnandrd for new
trial.